[July 24, 2013- Orange County, CA]
Late this afternoon and after a two week jury trial, an Orange County Superior Court jury found Pacific Ambulance, Inc., and and one of their EMT employees grossly negligent in the care and transport of our clients’ beautiful and loving son, Brett Weiner. Brett was only 21 years old at the time of his tragic and avoidable death and was a well known local high school athlete and scholar.
|“The defendant ambulance company played ‘private ambulance Russian roulette.’ They knew that there would be a time when the restraints would not work and they crossed their fingers every time they used them –hoping this wouldn’t be the bullet that would kill.”|
Brett’s mother and father, Dena and Keith Weiner, asked us to look into the death of their son after learning about false and inaccurate information about Brett’s death. Furthermore, serious questions were raised as to safety issues involving their son and the attempted non-emergency ambulance transport. The family’s goal in pursuing this case was to bring out the truth and fix what they perceived to be a serious problem with safety issues relating to the use of quick release soft restraints by private ambulance companies such as the defendant, Pacific Ambulance, Inc.
At the end of the day, the jury found Pacific Ambulance, Inc. and one of its EMTs grossly negligent in the care and transport of Brett and at fault for his wrongful death. The jury also agreed that Brett did absolutely nothing wrong and not at fault for his own death.
After graduating from a Tesoro high school as a multi-sport star athlete and academic “All Conference” and “All American” football player, Brett attended college and during this time, began to experience various levels of anxiety and depression. Brett’s mom and dad asked him to come home from school so they could help him and make sure he was safe. Brett did and the family managed the situation as best they could.
On the evening of December 22, 2011, our clients were at the mall holiday shopping. For the reasons mentioned above, Brett was worried something was going to happen to him and so he called his mom and dad and asked them to come home.
Dena and Keith arrived home and quickly realized Brett was not there. Worried for his safety, they called 911. About the same time OC Sheriff deputies arrived at our client’s home, Brett returned. Pursuant to Welfare & Institutions Code Section 5150 and, at the request of our clients, Brett was taken to a Mission Hospital hospital for observation and to try and figure out what was going on. At the hospital, Brett was medicated and cooperative. Our clients were very comfortable with the professional care provided by the Orange County Sheriff Department and Mission Hospital.
Around 6 a.m. the following morning, Dena and Keith received a phone call from a nurse at the hospital advising them that Brett was doing much better but would need to be transported to College Hospital in Cerritos. When Brett’s father offered to come down to the hospital and help coordinate Brett’s relocation, he was told in no uncertain words that, “we’ve got it all taken care of.”
Before hanging up the phone, the nurse advised our clients they could visit Brett around 2 pm. that afternoon at College Hospital. A non-emergency interfacility transport was coordinated between the two hospitals with the private defendant ambulance company, Pacific Ambulance, Inc.
The Pacific Ambulance EMTs Arrive at the Hospital
The defendant EMTs arrived at Mission. They met with the nurse in charge who discussed Brett’s condition in detail. She also provided the EMTs with Brett’s medical chart and 5150 documents. The EMTs were told Brett reported hearing evil voices and also having suicidal thoughts of jumping off a bridge. Despite the fact that Brett was now calm and cooperative, the EMT’s were advised that Brett continued to be at risk of harming himself. Because of his condition, both EMTs were placed on express written notice via a checked box on the 5150 documents that Brett was in danger of harming himself.
The EMT’s then went to Brett’s hospital room and found him calm and cooperative. At their request, Brett stood up, walked over and sat in the ambulance gurney in a semi Fowler’s position (reclined position). Brett was taken outside to the ambulance and loaded without incident. Once inside the ambulance, one of the defendant EMTs applied quick release soft wrist restraints on each of the Brett’s wrists (Issue #1- restraints should have been applied in the hospital room under a controlled environment, not in back of cramped ambulance with the EMT unable to reach over and properly connect and check the restraint tied to the gurney — not tied correctly).
One of the defendant EMTs rode in the back of the Pacific Ambulance, Inc. vehicle with Brett who was positioned such that he was looking towards the rear of the vehicle. This EMT was seated on a side bench providing the EMT with full view and access to observe Brett and the soft restraints during the transport. The other EMT drove the vehicle.
After about 10-15 minutes, the Brett asked the EMT who was in the back watching him to move behind him. The EMT complied and moved to the airway seat behind Brett. At all times, Brett was still in the raised Fowler’s position. His body and soft restraints were now blocked from the view of EMT. (Issue #2- EMT should not have moved from the position that allowed him a full view of the patient and restraints. Company policy and expert testimony indicated the EMT should have remained sitting on the side bench).
According to EMT riding in the back, a few minutes later he observed Brett sit up and slide his feet off of the gurney. After a brief struggle, Brett exited the almost stopped Pacific Ambulance and ran across 7 lanes of the 5 Freeway near the connection with the 55 Freeway.
Brett was eventually grabbed by off-duty Orange County Sheriff Deputy (the Weiner family thanks this deputy for trying to help). During trial, the deputy testified Brett told him he “needed to get back over there” pointing to where the ambulance was. After 3-5 minutes, Brett pulled away from the deputy and without looking, stepped on to the freeway and was immediately struck and killed by an oncoming vehicle.
To this day, the defendants’ have refused to accept any responsibility or accountability for Brett’s death.
The Claim and Litigation
After the defendants denied any responsibility for causing Brett’s death, the case was filed in the Orange County Superior Court. The primary issues in this case were those relating to whether or not the defendants negligently and carelessly restrained, monitored, and transported the decedent. Because of the immunity afforded to EMT’s under Health & Saf. Code 1799.106, the trial judged issued an order that we would have to show “gross negligence” on the part of defendants, rather than ordinary negligence, to prove our case.
This relatively unknown code section states,
“(a) In addition to the provisions of Section 1799.104 of this code, Section 2727.5 of the Business and Professions Code, and Section 1714.2 of the Civil Code, and in order to encourage the provision of emergency medical services by firefighters, police officers or other law enforcement officers, EMT-I, EMT-II, EMT-P, or registered nurses, a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith. A public agency employing such a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II,
EMT-P, or registered nurse shall not be liable for civil damages if the firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, EMT-P, or registered nurse is not liable.” (emphasis added)
The court found that despite this being a non-emergency interfacility ambulance transport, California case law expands the definition of “emergency” and so this additional element of proof (gross negligence) was required to be proven to the jury. As defined in CACI Jury Instruction 425 as,
“Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or by failing to act.”
Fortunately for our clients, our EMT expert believed strongly that the method and manner that the “quick release” soft restraints were applied and monitored resulted in facts allowing us to argue the gross negligence issue. He testified during trial that the bottom line was if the soft restraints were applied correctly in the first place, Brett would have never been able to rid himself from them. Our expert also testified that the defendant EMT in the back of the ambulance should have never moved from the side bench to a “blind spot” behind the patient. That by doing so, he created a situation that did not allow him to properly monitor Brett or the restraints. The jury agreed.
Our expert also offered testimony that had the EMT continued monitoring Brett from the position on the side bench (where he was taught to monitor patients from), he would have been able to easily observe and prevent Brett from releasing himself from the soft restraints.
During trial, Mr. Jackson asked the defendant EMT who was positioned in the back of the ambulance if he would do anything different if given another chance. He responded, “I would have paid more attention. I would have been on the bench seat.”
One of the primary reasons our clients’ decided to take this case to trial is because of the following. During the discovery process, we learned that during the 3-4 year period before Brett’s death, approximately 20 other patients of Pacific Ambulance, Inc. had released themselves of the quick release soft restraints. Despite what we thought were staggering numbers, Pacific Ambulance, Inc., took the position that these numbers were reasonable. Note- during trial our expert testified that if applied correctly, a patient such as Brett should have never been able to release himself from the soft restraint.
Another interesting fact materialized during trial. While cross-examining an employee for defendant responsible for training all EMTs, Mr. Jackson was surprised to learn that another 10 patients had also rid themselves of soft restraints SINCE Brett’s death. Again, the defendant testified that they were comfortable with these numbers and no steps were taken to correct this obvious safety problem.
In our opinion, the defendants played Russian roulette with Brett and this ended up costing him his life. Our hearts go out to the entire Weiner family and with this verdict and the help of experts, we hope to change and improve the way private ambulance companies in Orange County and across California handle the transport of their patients.
Unfortunately, what most consumers are not aware of and something our jurors were not allowed to hear during trial, is the fact that the damages in this case are artificially capped by MICRA (California’s Medical Injury Compensation Reform Act). MICRA artificially caps the non-economic damages in this case to only $250,000. What this means is that if a jury awards a large verdict in a medical malpractice case, the amount of the non-economic portion of the verdict will eventually be reduced by the trial court to only $250,000.
This extremely bad law was enacted in 1975 in response to a perceived but later discredited crisis in the rising cost of premiums for medical malpractice insurance. MICRA caps compensation for what are known as “non-economic” damages – including life-altering situations such as the loss of limbs or mobility, severe disfigurement, loss of vision or fertility, ongoing pain, loss of a parent or spouse or child.
It is noted that even after MICRA took effect, the insurance premiums continued to substantially rise. It was only after passage in 1988 of Proposition 103, which gave the state the power to regulate premium increases, that healthcare providers had the assurance they would not be gouged by malpractice insurers.
We’re hoping that in addition to raising the bar when it comes to patient safety, this case will also raise awareness to the changes that are necessary eliminate or overturn the old MICRA law. It’s not going to be an easy task but with the help of other consumer lawyers across the state, we think it can be done.
Case specifics- OCSC Case No. 30-2012-00550614; Trial Judge: Hon. James J. Di Cesare (Dept C18); Defense counsel- Dana Alden Fox and Mona Tashroudain of Lewis, Brisbois, Bisgaard & Smith